Conflictoflaws

This blog post presents a condensed version of an article by Dr Mukarrum Ahmed (Lancaster University) and Professor Paul Beaumont (University of Aberdeen) in the August 2017 issue of the Journal of Private International Law. The blog post includes specific references to the actual journal article to enable the reader to branch off into the detailed discussion where relevant. It also takes account of recent developments in the Brexit negotiation that took place after the journal article was completed.    

On 1 October 2015, the Hague Convention on Choice of Court Agreements 2005 (‘Hague Convention’) entered into force in 28 Contracting States, including Mexico and all the Member States of the European Union, except Denmark. The Convention has applied between Singapore and the other Contracting States since 1 October 2016. China, Ukraine and the USA have signed the Convention indicating that they hope to ratify it in the future (see the official status table for the Convention on the Hague Conference on Private International Law’s website). The Brussels Ia Regulation, which is the European Union’s device for jurisdictional and enforcement matters, applies as of 10 January 2015 to legal proceedings instituted and to judgments rendered on or after that date. In addition to legal issues that may arise independently under the Hague Convention, some issues may manifest themselves at the interface between the Hague Convention and the Brussels Ia Regulation. Both sets of issues are likely to garner the attention of cross-border commercial litigators, transactional lawyers and private international law academics. The article examines anti-suit injunctions, concurrent proceedings and the implications of Brexit in the context of the Hague Convention and its relationship with the Brussels Ia Regulation. (See pages 387-389 of the article)

It is argued that the Hague Convention’s system of ‘qualified’ or ‘partial’ mutual trust may permit anti-suit injunctions, actions for damages for breach of exclusive jurisdiction agreements and anti-enforcement injunctions where such remedies further the objective of the Convention. (See pages 394-402 of the article) The text of the Hague Convention and the Explanatory Report by Professors Trevor Hartley and Masato Dogauchi are not explicit on this issue. However, the procès-verbal of the Diplomatic Session of the Hague Convention reveal widespread support for the proposition that the formal ‘process’ should be differentiated from the desired ‘outcome’ when considering whether anti-suit injunctions are permitted under the Convention. Where anti-suit injunctions uphold choice of court agreements and thus help achieve the intended ‘outcome’ of the Convention, there was a consensus among the official delegates at the Diplomatic Session that the Convention did not limit or constrain national courts of Contracting States from granting the remedy. (See Minutes No 9 of the Second Commission Meeting of Monday 20 June 2005 (morning) in Proceedings of the Twentieth Session of the Hague Conference on Private International Law (Permanent Bureau of the Conference, Intersentia 2010) 622, 623–24) Conversely, where the remedy impedes the sound operation of the Convention by effectively derailing proceedings in the chosen court, there was also a consensus of the official delegates at the meeting that the Convention will not permit national courts of the Contracting States to grant anti-suit injunctions.

However, intra-EU Hague Convention cases may arguably not permit remedies for breach of exclusive choice of court agreements as they may be deemed to be an infringement of the principle of mutual trust and the principle of effectiveness of EU law (effet utile) which animate the multilateral jurisdiction and judgments order of the Brussels Ia Regulation (see pages 403-405 of the article; C-159/02 Turner v Grovit [2004] ECR I-3565). If an aggrieved party does not commence proceedings in the chosen forum or commences such proceedings after the non-chosen court has rendered a decision on the validity of the choice of court agreement, the recognition and enforcement of that ruling highlights an interesting contrast between the Brussels Ia Regulation and the Hague Convention. It appears that the non-chosen court’s decision on the validity of the choice of court agreement is entitled to recognition and enforcement under the Brussels Ia Regulation. (See C-456/11 Gothaer Allgemeine Versicherung AG v Samskip GmbH EU:C:2012:719, [2013] QB 548) The Hague Convention does not similarly protect the ruling of a non-chosen court. In fact, only a judgment given by a court of a Contracting State designated in an exclusive choice of court agreement shall be recognised and enforced in other Contracting States. (See Article 8(1) of the Hague Convention) Therefore, the ruling of a non-chosen court is not entitled to recognition and enforcement under the Hague Convention’s system of ‘qualified’ or ‘partial’ mutual trust. This provides a ready explanation for the compatibility of anti-suit injunctions with the Hague Convention but does not proceed any further to transpose the same conclusion into the very different context of the Brussels Ia Regulation which prioritizes the principle of mutual trust.

The dynamics of the relationship between Article 31(2) of the Brussels Ia Regulation and Articles 5 and 6 of the Hague Convention is mapped in the article (at pages 405-408). In a case where the Hague Convention should apply rather than the Brussels Ia Regulation because one of the parties is resident in a non-EU Contracting State to the Convention even though the chosen court is in a Member State of the EU (See Article 26(6)(a) of the Hague Convention) one would expect Article 6 of the Convention to be applied by any non-chosen court in the EU. However, the fundamental nature of the Article 31(2) lis pendens mechanism under the Brussels Ia Regulation may warrant the pursuance of a different line of analysis. (See Case C-452/12 Nipponkoa Insurance Co (Europe) Ltd v Interzuid Transport BV EU:C:2013:858, [2014] I.L.Pr. 10, [36]; See also to similar effect, Case C-533/08 TNT Express Nederland BV v AXA Versicherung AG EU:C:2010:243, [2010] I.L.Pr. 35, [49]) It is argued that the Hartley–Dogauchi Report’s interpretative approach has much to commend it as it follows the path of least resistance by narrowly construing the right to sue in a non-chosen forum as an exception rather than the norm. The exceptional nature of the right to sue in the non-chosen forum under the Hague Convention can be effectively reconciled with Article 31(2) of the Brussels Ia Regulation. This will usually result in the stay of the proceedings in the non-chosen court as soon as the chosen court is seised. As a consequence, the incidence of parallel proceedings and irreconcilable judgments are curbed, which are significant objectives in their own right under the Brussels Ia Regulation. It is hoped that the yet to develop jurisprudence of the CJEU on the emergent Hague Convention and the Brussels Ia Regulation will offer definitive and authoritative answers to the issues discussed in the article.

The implications of Brexit on this topic are not yet fully clear. (See pages 409-410 of the article) The UK is a party to the Hague Choice of Court Agreements Convention as a Member State of the EU, the latter having approved the Convention for all its Member States apart from Denmark. The UK will do what is necessary to remain a party to the Convention after Brexit.  In its recently published negotiating paper – only available after the article in the Journal of private International Law was completed – the UK Government has explicitly stated that:

“It is our intention to continue to be a leading member in the Hague Conference and to participate in those Hague Conventions to which we are already a party and those which we currently participate in by virtue of our membership of the EU.”  (see Providing a cross-border civil judicial cooperation framework (PDF) at para 22).

The UK will no doubt avoid any break in the Convention’s application. Brexit will almost certainly see the end of the application of the Brussels Ia Regulation in the UK. The reason being that its uniform interpretation is secured by the CJEU through the preliminary ruling system under the Treaty on the Functioning of the European Union (TFEU).  The UK is not willing to accept that jurisdiction post-Brexit (“Leaving the EU will therefore bring an end to the direct jurisdiction of the CJEU in the UK, because the CJEU derives its jurisdiction and authority from the EU Treaties.” see  Providing a cross-border civil judicial cooperation framework at para 20). So although the UK negotiators are asking for a bespoke deal with the EU to continue something like Brussels Ia (“The UK will therefore seek an agreement with the EU that allows for close and comprehensive cross-border civil judicial cooperation on a reciprocal basis, which reflects closely the substantive principles of cooperation under the current EU framework” see  Providing a cross-border civil judicial cooperation framework at para 19) it seems improbable that the EU will agree to such a bespoke deal just with the UK when the UK does not accept the CJEU preliminary ruling system.  The EU may well say that the option for close partners of the EU in this field is the Lugano Convention. The UK Government has indicated that it would like to remain part of the Lugano Convention (see Providing a cross-border civil judicial cooperation framework at para 22). In doing so it would continue to mandate the UK courts to take account of the jurisprudence of the CJEU -when that court is interpreting Brussels Ia or the Lugano Convention – when UK courts are interpreting the Lugano Convention (see the opaque statement by the UK Government that “the UK and the EU will need to ensure future civil judicial cooperation takes into account regional legal arrangements, including the fact that the CJEU will remain the ultimate arbiter of EU law within the EU.” see  Providing a cross-border civil judicial cooperation framework at para 20). However, unless the Lugano Convention is renegotiated it does not contain a good solution in relation to conflicts of jurisdiction for exclusive choice of court agreements because it has not been amended to reflect Article 31(2) of Brussels Ia and therefore still gives priority to the non-chosen court when it is seised first and the exclusively chosen court is seised second in accordance with the Gasser decision of the CJEU (see Case C-116/02 [2003] ECR I-14693).  Renegotiation of the Lugano Convention is not even on the agenda at the moment although the Gasser problem may be discussed at the Experts’ Meeting pursuant to Article 5 Protocol 2 of the Lugano Convention on 16 and 17 October 2017 in Basel, Switzerland (Professor Beaumont is attending that meeting as an invited expert).  Revision of the Lugano Convention would be a good thing, as would Norway and Switzerland becoming parties to the Hague Convention.  It seems that at least until the Lugano Convention is revised and a means is found for the UK to be a party to it (difficult if the UK does not stay in EFTA), the likely outcome post-Brexit is that the regime applicable between the UK and the EU (apart from Denmark) in relation to exclusive choice of court agreements within the scope of the Hague Convention will be the Hague Convention. The UK will be able to grant anti-suit injunctions to uphold exclusive choice of court agreements in favour of the courts in the UK even when one of the parties has brought an action contrary to that agreement in an EU Member State. The EU Member States will apply Article 6 of the Hague Convention rather than Article 31(2) of the Brussels Ia Regulation when deciding whether to decline jurisdiction in favour of the chosen court(s) in the UK.

Whilst the Hague Convention only offers a comprehensive jurisdictional regime for cases involving exclusive choice of court agreements, it does give substantial protection to the jurisdiction of UK courts designated in such an agreement which will be respected in the rest of the EU regardless of the outcome of the Brexit negotiations. Post-Brexit the recognition and enforcement regime for judgments not falling within the scope of the Hague Choice of Court Agreements Convention could be the new Hague Judgments Convention currently being negotiated in The Hague (see Working Paper No. 2016/3- Respecting Reverse Subsidiarity as an excellent strategy for the European Union at The Hague Conference on Private International Law – reflections in the context of the Judgments Project? by Paul Beaumont). Professor Beaumont will continue to be a part of the EU Negotiating team for that Convention at the Special Commission in the Hague from 13-17 November 2017. It is greatly to be welcomed that the UK Government has affirmed its commitment to an internationalist and not just a regional approach to civil judicial co-operation:

“The UK is committed to increasing international civil judicial cooperation with third parties through our active participation in the Hague Conference on Private International Law and the United Nations Commission on International Trade Law… We will continue to be an active and supportive member of these bodies, as we are clear on the value of international and intergovernmental cooperation in this area.” See Providing a cross-border civil judicial cooperation framework at para 21.

One good thing that could come from Brexit is the powerful combination of the EU and the UK both adopting a truly internationalist perspective in the Hague Conference on Private International Law in order to genuinely enhance civil judicial co-operation throughout the world.  The UK can be one of the leaders of the common law world while using its decades of experience of European co-operation to help build bridges to the civil law countries in Europe, Africa, Asia and Latin America.

The Private International Law Group from the School of Law of Carlos III University of Madrid (Universidad Carlos III de Madrid, www.uc3m.es) is delighted to announce its International Congress on matters of matrimonial property regimes and property consequences of registered partnerships (from 16-17 November 2017).

Young researchers are invited to submit their papers about the subject of the Congress. Abstracts, either in Spanish or English (Word format) must be sent to mjcastel@der-pr.uc3m.es (deadline: 30th September 2017), including:

-Name and surname

-Affiliation of the submitting researcher

-Short biographical note (no more than 500 words)

-Title and Summary of the proposed paper (no more than 800 words)

The abstracts will be reviewed by the following Committee:

Alfonso L. Calvo Caravaca, Professor of Private International Law (Carlos III University of Madrid).

Esperanza Castellanos Ruiz, Associate Professor of Private International Law (Carlos III University of Madrid).

Juliana Rodríguez Rodrigo, Associate Professor of Private International Law (Carlos III University of Madrid).

The decision will be notified to the author by 15th October 2017

Successful applicants will present their papers into the Young Researchers Round Table (17th November 2017) and their papers may be published in the Journal Cuadernos de Derecho Transnacional.CDT (www.uc3m.es/cdt ).

The organization will not be responsible for the expenses of young researchers’ participation in the Congress.

Back in March the the Child & Family Law Quarterly together with Cambridge Family Law hosted a conference on the the impact of Brexit on international family law (see our previous post). Some of the academic papers that were presented at this occasion have now been published in a special Brexit issue of the Child & Family Law Quarterly.

Here is the table of content:

• Brexit and international family law from a continental perspective, Anatol Dutta
• Private international law concerning children in the UK after Brexit: comparing Hague Treaty law with EU Regulations, Paul Beaumont
• Divorcing Europe: reflections from a Scottish perspective on the implications of Brexit for cross-border divorce proceedings, Janeen M Carruthers and Elizabeth B Crawford
• What are the implications of the Brexit vote for the law on international child abduction?, Nigel Lowe
• Not a European family: implications of ‘Brexit’ for international family law, Ruth Lamont

On 5/6 April 2018 Dr. Ana Mercedes López Rodríguez, Ph.D. and Dr. Katia Fach Gómez, LL.M will convene a conference to commemorate the 60th anniversary of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. The conference will take place at University Loyola Andalucia (Seville/Spain) and is expected to comprise 3-4 Keynote Lectures and round tables with approximately 36 speakers.

Academics, practitioners and policymakers are invited to submit extended abstracts or unpublished full papers on the referred topic to the conference directors (amlopez@uloyola.es; katiafachgomez@gmail.com) by 30 November 2017.  Practitioners at all stages of their careers and senior and junior scholars (including Ph.D. students) are encouraged to participate.

The Conference directors expect to publish an edited volume in English by a relevant legal publishing house containing the most relevant papers presented in the Conference.

Further information about the submission and publication process can be found here and at the Conference website.

The European Law Institute has approved and published its new instrument, the report on the Rescue of Business in Insolvency Law. The report is available on SSRN as well as on the website of the ELI. The abstract on SSRN reads as follows:

Since the global financial crisis, insolvency and restructuring law have been at the forefront of law reform initiatives in Europe and elsewhere. The specific topic of business rescue appears to rank top on the insolvency law related agenda of both the European Union (EU) and national legislators faced by a rapid growth of insolvencies, which clearly highlighted the importance of efficient mechanisms for dealing with distressed, but viable business. For the European Law Institute (ELI), this fuelled the momentum to launch an in-depth project on furthering the rescue of such businesses across Europe. The European Law Institute, established in 2011, is an independent non-profit organisation established to initiate, conduct and facilitate research, make recommendations and provide practical guidance in the field of European legal development. Building on the wealth of diverse legal traditions, ELI’s mission is the quest for better law-making in Europe and the enhancement of European legal integration. By its endeavours, ELI seeks to contribute to the formation of a more vigorous European legal community, integrating the achievements of the various legal cultures, endorsing the value of comparative knowledge, and taking a genuinely pan-European perspective. As such, its work covers all branches of the law: substantive and procedural; private and public (see http://www.europeanlawinstitute.eu/).

The topics addressed in the Report are intended to present a tool for better regulation in the EU, developed in the spirit of providing a coherent, dynamic, flexible and responsive European legislative framework for business rescue. Mindful of the European Commission’s commitment to better legal drafting, the Report’s proposals are formulated as comprehensibly, clearly, and as consistently as possible. Still, the recommendations are not designed to be overly prescriptive of specific outcomes, given the need for commercial flexibility and in recognition of the fact that parties will bargain in the ‘shadow of insolvency law’. The Report is addressed to the European Union, Member States of the EU, insolvency practitioners and judges, as well as scholars. The targeted group many times flows explicitly from the text of a recommendation or the context in which such a recommendation is developed and presented. The Reporters cherish the belief that the report will assist in taking a next, decisive step in the evolutionary process of the European side of business rescue and insolvency law.

The Permanent Bureau of the Hague Conference on Private International Law (HCCH) has just released the final French and English versions of the draft Guide to Good Practice on Article 13(1)(b) of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (Child Abduction Convention) for the attention of the Special Commission meeting of October 2017 on the practical operation of the 1980 Child Abduction Convention and of the 1996 Child Protection Convention.  A Spanish translation of the document is also available.

Further information relating to the Special Commission meeting is available here: https://www.hcch.net/en/publications-and-studies/details4/?pid=6545&dtid=57

In my view, this topic will likely spark some debate at the meeting given the heightened awareness of some of the pitfalls of the Child Abduction Convention in relation to cases of domestic violence. See, for example, Taryn Lindhorst and Jeffrey L. Edleson, Battered Women, their Children, and International Law – the Unintended Consequences of the Hague Child Abduction Convention (Boston: Northeastern University Press, 2012) and Honourable Brenda Hale (Baroness Hale of Richmond), “Taking Flight—Domestic Violence and Child Abduction”, Current Legal Problems (13 August 2017).

Please note that the meeting above-mentioned is open only to delegates or experts designated by the Members of the Hague Conference, invited non-Member States and International Organisations that have been granted observer status.

It does not happen too often that (the notion of) European Private International Law hits the front pages of the daily news. But on Friday it happened: Germany’s foremost (conservative) newspaper, the Frankfurter Allgemeine Zeitung (FAZ), addressed A.G. Saugmandsgaard’s recent opinion on the recognition of private (Sharia) divorces under the Rome III Regulation. In so doing the FAZ expressly pointed out, on page 1, that it was unclear whether “European rules on choice of law (“Europäisches Kollisionsrecht”) actually applied in the case at bar.

The A.G.’s full opinion according to which the Rome III Regulation (if it applies at all) does not allow a private divorce to be recognized as valid where the applicable foreign law is discriminatory, is available here (in a number of languages, but not in English). The official press release can be downloaded here.

Written by Veerle Van Den Eeckhout

In February 2017, the working paper “Internationaal privaatrecht in tijden van globalisering. “Neutraal” internationaal privaatrecht!?”) of Veerle Van Den Eeckhout was posted on ssrn. This paper was written in Dutch.

Meanwhile, an English, slightly extended version of the paper (“Private International Law in an Era of Globalisation. “Neutral” Private International Law? I could be brown, I could be blue, I could be violet sky”) has been made available.

The abstract reads as follows: “In times of (discussions about) globalisation, due attention must be given to the operation of rules of private international law. Examination of the ongoing developments in private international law itself and in private international law in its interaction with other disciplines from the perspective of “protection of weak parties” and “protection of planetary common goods” allows carrying out the analysis to which current developments invite.”

The English paper can be found here.

More (not much more) information is here. Guangjian Tu provided a Chinese perspective on the Convention ten years ago. Two other recent publications are in this context: Zheng Sophia Tang and Alison Lu Xu on Choice of Court Agreements in Electronic Consumer Contracts in China, and King Fung Tsang, Chinese Bilateral Judgment Enforcement Treaties, 40 Loy. L.A. Int’l. & Comp. L. Rev. 1 (2017) (only on heinonline).

On the occasion of the 80th birthday of Jürgen Samtleben, a Symposium will be held on 6 and 7 October 2017 at the Max-Planck-Institute in Hamburg, under the title: Focus Latin America — International Conflicts and Legal Order.

There will be presentations in German, Spanish, and Portuguese.

Registration is free, and due until 15 September 2017, through e-mail: veranstaltungen@mpipriv.de.

The program is available here.

The Center of Legal Studies on Efficiency of the Contemporary Law Systems (Cejesco – University of Reims) organizes a conference at the Faculty of Law on 13 September 2017 on the evolution of Law in China.

In this occasion, the book “International Sale of Goods – A Private International Law Comparative and Prospective Analysis of Sino-European Relations” (N. Nord and G. Cerqueira, Springer, 2017) will be presented to the academic community.

Topics and speakers:

The Evolution of the Law in China – Nicolas Nord, Associate Professor, University of Strasbourg

Book Comments – Cyril Nourissat, Professor, University Jean Moulin – Lyon 3.

The conference will be chaired by Gustavo Cerqueira, Associate professor, University of Reims.

For further information on the conference:  https://univ-droit.fr/actualites-de-la-recherche/manifestations/24173-l-evolution-du-droit-en-chine

For further information on the book: http://www.springer.com/us/book/9783319540351

Can we teach private international law through film? Yes we can, and not only through Green Card. Three sources in Spanish provide ample material, including some for non-Spanish speakers.

The first, most comprehensive and academic one, comes from the Proyecto DeCine, a network of Spanish law professors interested in teaching law through film. The result is a fabulous  book full with detailed didactic materials on different films, which is also available for free online. Several of the films discussed are in English or exist in translation.

The second source, a series of blog posts by Angel Espiniella Menéndez, professor for private international law at the University Oviedo, provides valuable recommendations, organized by subject matter, in monthly instalments. So far, he has provided five: person and capacity,   protection of minors, parentage, marriage, and breakdown of marriage. Hopefully, more are coming

Finally,  MillenniumDiPR.com provides a rather eccentric list of ten private international law related movies with some unexpected themes: Titanic for international family law, The Martian for conflicts with Martian law, etc. Only for the daring.

But all of this is in Spanish. Who has recommendations in other languages? Or who writes the guide in English?

The Permanent Bureau of the Hague Conference on Private International Law (HCCH) has just issued a Note on the concept of “purposeful and substantial connection” in Article 5(1)(g) and 5(1)(n)(ii) of the February 2017 draft Convention of the Judgments Project for the attention of the Special Commission meeting of November 2017 on the Recognition and Enforcement of Foreign Judgments. The February 2017 draft Convention is available here.

This Note was prepared by Professor Ronald A. Brand and Dr Cristina M. Mariottini. Professor Geneviève Saumier provided comments.

Article 5(1)(g) and 5(1)(n)(ii) reads as follows:

Article 5(1)

“A judgment is eligible for recognition and enforcement if one of the following requirements is met” – […]

(g)

“[T]he judgment ruled on a contractual obligation and it was given in the State in which performance of that obligation took place, or should have taken place, in accordance with

(i) the parties’ agreement, or

(ii) the law applicable to the contract, in the absence of an agreed place of performance

unless the defendant’s activities in relation to the transaction clearly did not constitute a purposeful and substantial connection to that State;” (our emphasis)

(n)(ii)

“[T]he judgment concerns the validity, construction, effects, administration or variation of a trust created voluntarily and evidenced in writing, and – […]

(ii) the law of the State of origin is expressly or impliedly designated in the trust instrument as the law governing the aspect of the trust that is the subject of the litigation that gave rise to the judgment[, unless the defendant’s activities in relation to the trust clearly did not constitute a purposeful and substantial connection to that State];” […] (our emphasis)

Other information relating to the meeting is available at https://www.hcch.net/en/projects/legislative-projects/judgments/special-commission.

Please note that the meeting above-mentioned is open only to delegates or experts designated by the Members of the Hague Conference, invited non-Member States and International Organisations that have been granted observer status.

The good tradition of the biannual Petar Sarcevic conferences is being continued this year with the 5th conference titled Information and Data: The Road Ahead. It will take place in a beautiful Croatian coastal tourist and conference resort Opatija, on 6 and 7 October.

This two-day event will provide ample oportunities for the professionals and scholars to discuss current issues of protection of confidential information, business secrets and personal data in the context of technological advancement and resulting economic and social developments. The conference is divided into three sessions:
– Protection of confidential information v access/disclosure
– Managing data protection: A tall order for controllers and subjects
– Litigation in the midst of economic and technological changes.
The wast range of speakers includes members of the judiciary (EU and national), representatives of the executive branch, leading lawyers and prominent academics.

For additional information about the conference, programme, speakers, venue and special early-bird rates expirying on 10 September please consult the conference webpage.

Leuphana Law School is looking for a highly skilled and motivated Ph.D. candidate and fellow (wissenschaftliche/r Mitarbeiter/in) on a part-time basis (50%) as of 1 December 2017.

The successful candidate holds a first law degree (ideally the First State Exam (Germany) or LL.M. (UK)/J.D. (USA)/similar degree) and is interested in private international law, international economic law, and intellectual property law—all from a comparative and interdisciplinary perspective. A very good command of German and English is expected; good IT skills are required.

The fellow will be given the opportunity to conduct his/her own Ph.D. project (under the faculty’s regulations). The position is paid according to the salary scale E-13 TV-L, 50%. The initial contract period is three years, with an option to be extended. The research fellow will conduct research as part of the unit led by Professor Dr. Tim W. Dornis (Chair in Private Law, International Private and Economic Law, and Comparative Law) and will have an independent teaching obligation (2 hours/week).

If you are interested in this position, please send your application (cover letter, CV, and relevant documents) by 4 October 2017 to

Leuphana Universität Lüneburg

Personalservice, Corinna Schmidt

Kennwort: WiMi Rechtswissenschaften

Universitätsallee 1

21335 Lüneburg

bewerbung@leuphana.de

Leuphana University is an equal opportunity employer.

The job advert in full detail is accessible here

http://www.leuphana.de/news/jobs-und-karriere/forschung-lehre/ansicht-forschung-lehre/datum/2017/08/24/wissenschaftlichen-mitarbeiterin-zur-juristischen-promotion.html

Today (6 September 2017) Bolivia joined the Hague Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents (Apostille Convention). With the accession of Bolivia, the Apostille Convention now has 115 Contracting Parties. The Apostille Convention will enter into force for Bolivia on 7 May 2018.

Four out of the last five States that have joined the Apostille Convention since December 2015 have been from the Americas (Brazil, Chile, Guatemala and Bolivia). The Apostille Convention has already entered into force for Brazil and Chile and will enter into force for Guatemala on 18 September 2017.

There are 5 States that are yet to join the Apostille Convention from the Americas: Canada, Cuba, Guyana, Haiti and Jamaica.

For more information visit https://www.hcch.net/en/news-archive/details/?varevent=568. The full list of Contracting Parties is available here.

For the first time, a Chinese court has recognized and declared enforceable a commercial monetary judgment from the United States. Jie Huang from the University of New South Wales provides more information and commentary. Some further information and background from Don Clarke is here.

From August 3-5 this year, the Pontifical Catholic University of Rio de Janeiro hosted the 7th biennial conference of the Journal of Private International Law. Ably organized by Nadia de Araujo and Daniela Vargas from the host institution, together with Paul Beaumont from Aberdeen, the conference was a great success, as concerns both the quality and quantity of the presentations. Instead of a conference report, I want to provide some, undoubtedly subjective, impressions as concerns the emerging global community of private international law.

First, no less than 168 participants attended, from all over the world. The Journal conference has, by now, become something like a World Congress of Private International Law. This is no small achievement. The Journal of Private International Law started out in 2005 as a very doctrinal publication focusing primarily on common law systems and European private international law. Fittingly, the first two conferences took place in the UK. It was a very wise decision to move, after that, to cities in other countries—New York (2009), Milan (2011), Madrid (2013) and now, after a return to the UK (Cambridge) for the ten-year anniversary in 2015, Rio de Janeiro (2017). By now, it can be said that Journal and conference both really represent the world. And what is emerging is a global community that comes together at these and other events.

Second, this first Journal conference in Latin America was an excellent opportunity to showcase the tremendous developments of the discipline on this Continent. Latin America, the region that created the Código Bustamante, has long produced excellent scholars in private international law. However, for some time the discipline appeared, at least to the outside observer, marginalized, caught between a very doctrinal approach on the one side and a very philosophical one on the other, both often without connection to actual practice. In recent years, this has changed, for a number of reasons: the Hague Conference established a bureau, led by Ignacio Goicoechea; a young generation of scholars connects theory and practice, doctrine and interdisciplinarity; legislators are, at long last, replacing antiquated legislation. Many Latin American scholars and practitioners at the conference proved that interest and quality. But the best sign for the vitality of the field were the many excellent Brazilian students who followed the conference with enthusiasm and expertise.

Third, and finally, this emerging globalization captures all regions, but not to the same degree. The great importance of Latin America in Rio was no surprise. Nor was the great role that European private international law, a testament not only both to the European background of the journal and the more generous travel budgets in European universities, but also to the legislative and scholarly developments in Europe. Asia was somewhat less well represented, as far as I could see, despite exciting developments there (including current work on Asian Principles of Private International Law), but several presentations dealt with Asian development. The most palpable absence concerned the United States. There were only two participants from the US, fewer than there were Nigerians. In a not so distant past, US private international law was the avant-garde of the discipline worldwide. When the Second Restatement was being discussed, the whole world was watching what the conflicts revolution would yield. Now, a third Restatement is underway. But I heard no word about that from participants in Rio, and the Restatement’s reporters did not use the occasion to advertise their project. The United States is no longer leading the globalization of the field. Will it at least follow?

The latest issue of the „Praxis des Internationalen Privat- und Verfahrensrechts (IPRax)“ features the following articles:

D. Coester-Waltjen: Fighting Child Marriages – even in Private International Law

The article describes the newly enacted German law against “child marriages” and analyses the critical points. This law raises the minimum marriage age to 18 years without any option for younger persons to conclude a valid marriage. The former possibility of a dispensation by the family court has been abolished. Even more important and critical at the same time are the new provisions with regard to cases where foreign law governs the ability to marry. Despite the principal application of the spouses’ national law, German law will always govern the question of the minimum marital age. This applies to marriages formed in Germany as well as to those already validly concluded elsewhere. Thus, irrespective of the applicable national law of the spouses a marriage cannot be concluded in Germany by persons who are younger than 18. If such a marriage has been formed nevertheless, it will be null and void from the beginning if one spouse was younger than 16 at the time of the marriage. If the spouses had attained the age of 16, but at least one of them was younger than 18, the marriage will be voidable (and must be declared void) in Germany. This is true also for heterosexual marriages of minors concluded elsewhere and valid under the otherwise applicable law. German law invalidates these marriages either directly (one spouse under 16) or through annulment proceedings (one spouse over 16 but under 18). The law provides only few exceptions and applies to all persons under 18 at the time the new law entered into force.

C. F. Nordmeier: The German Law on the Modification of Rules in the Area of Private International Law and Private International Procedural Law – New Provisions for Cross-Border Civil Proceedings

By the recently enacted law on the modification of rules in the area of Private International Law and Private International Procedural Law the German legislator created several alterations for civil procedures involving crossborder elements. The present contribution critically analyses the new rules. As far as service is concerned, the prohibition to demand the designation of an authorized recipient within the scope of application of the EU Service Regulation, the competence of judicial officers to handle incoming requests for service and new one-month periods for certain procedural measures are discussed. Also, the annulment of a European order for payment in the event that the applicant fails to indicate the competent court for the adversary proceedings is examined – as well as the possibility for the States of the Federal Republic of Germany to concentrate proceedings under the European Small Claims Regulation before certain courts. Finally, the consequences of the continued non-admission of judicial assistance for pre-trial discoveries in Germany are subject to discussion.

F. Maultzsch: International Jurisdiction and Jointly Committed Investment Torts (Art. 5 No. 3 Lugano Convention 2007/Brussels I Regulation, Art. 7 No. 2 Brussels Ibis Regulation)

The German Federal Supreme Court (BGH) has denied an attribution of acts among joint participants of cross-border investment torts for the purposes of Art. 5 No. 3 of the Lugano Convention 2007/Brussels I Regulation, Art. 7 No. 2 of the Brussels Ibis Regulation. The judgment is based on a broad reading of the Melzer-decision of the CJEU. This article gives a critical assessment of the BGH’s judgment. First of all, the Melzer-decision with its restrictive position as to attribution of tortious acts seems to be problematic in itself. Furthermore, the BGH does not consider that the case law of the CJEU has been developed for situations different from those to be judged by the BGH. The issue of attribution of tortious acts under Art. 5 No. 3 of the Lugano Convention 2007/Brussels I Regulation, Art. 7 No. 2 of the Brussels Ibis Regulation should be approached in a nuanced way that accounts for the nature of the tort in question. This may also include a resort to the lex causae for specific protective laws (Schutzgesetze). In the case at hand where a foreign financial service provider had relied purposefully on acts of procurement carried out by a third party in Germany, jurisdiction of the German courts should have been approved under Art. 5 No. 3 of the Lugano Convention 2007/Brussels I Regulation, Art. 7 No. 2 of the Brussels Ibis Regulation.

W.-H. Roth: Private international law and consumer contracts: data protection, injunctive relief against unfair terms, and unfairness of choice-of-law provisions

In its Amazon judgment, C-191/15, the European Court of Justice deals with three conflict-of-laws issues. Firstly, it determines the international applicability of data protection laws of the Member States in the light of Directive 95/46/EEC: A Member State may apply its law to business activities of an out-of-state undertaking directed at its territory if it can be shown that the undertaking carries out its data processing in the context of the activities of an establishment situated in that Member State. Secondly, it holds that an action for an injunction directed against the use of unfair terms in general terms and conditions, pursued by a consumer protection association, has to be classified as non-contractual. The law applicable to the action and the remedy has to be determined on the basis of Article 6 (1) of the Rome II Regulation, being related to an act of unfair competition, whereas the (incidental) question of unfairness of a specific term in general terms and conditions shall be classified as a contractual issue and has to be judged on the basis of the law applicable to contracts according to the Rome I Regulation. Thirdly, the Court holds that the material scope of Directive 93/13/EEC extends to choice-of-law clauses in pre-formulated consumer contracts. Such a choice-of-law clause may be considered as unfair if it leads the consumer into error as far as the laws applicable to the contract is concerned.

C. Thomale: Refusing international recognition and enforcement of civil damages adjunct to foreign criminal proceedings due to irreconcilability with a domestic civil judgment

The German Supreme Court refused to enforce a civil claim resulting from criminal proceedings seated in Italy for reasons of irreconcilability with a German judgment given between the same parties. The case illustrates the considerable legal uncertainty that persists with the application of this ground for refusal of recognition and enforcement. The paper argues for a narrow interpretation in order to strengthen free movement of judgments within the European judicial area.

U. P. Gruber: Recognition of provisional measures under Brussels lla

In Purrucker, the ECJ established criteria for the recognition of provisional measures in matters of parental responsibility. Pursuant to the ECJ, if the court bases its jurisdiction on Art. 8 to 14 of the Brussels IIa Reg., the judgement containing provisional measures will be recognized and enforced in other Member States by way of Art. 21 et seqq. of the Regulation. If, however, the judgement does not contain an unambiguous statement of the grounds in support of the substantive jurisdiction of that court pursuant to Art. 8 to 14 Brussels IIa, the judgement does not qualify for recognition and enforcement under Art. 21 et seqq. Nevertheless, recognition and enforcement of the judgement are not per se excluded in this case. Rather, it has to be examined whether the judgement meets the prerequisites of Art. 20 Brussels IIa. If this is the case, the judgement can be recognized by use of other international instruments or national legislation. In a new decision, the Bundesgerichtshof applied this two-step-approach established by the ECJ to a Polish judgement, consequently denying any possibility to recognize the Polish judgement in Germany.

W. Hau: Enforcement of penalty orders protecting parental rights of access within the European Union

A dispute over the enforcement in Finland of a Belgian penalty order protecting parental rights of access has uncovered a loophole in the European law of international civil procedure: The Brussels I resp. Brussels Ibis Regulation deals with the preconditions of the enforcement of foreign penalty orders (especially as regards the final determination of the payable amount), but only in the context of civil and commercial matters, excluding family matters. The Brussels IIbis Regulation, on the other hand, covers disputes over parental rights of access but remains silent about penalty orders. The CJEU proposes an appropriate solution, bridging the gap in the regulations.

R. Geimer: Ordre public attenué de la reconnaissance in adoption law

The relevance of timing by reason of recognizing child adoptions of foreign states despite violation of public order in the original proceedings.

C. A. Kern: The enforceability of foreign enforcement orders arising from family relationships

In Germany, various regimes govern the enforceability of foreign enforcement orders arising from family relationships. The traditional way is to have the foreign enforcement order declared enforceable on the basis of adversarial proceedings. Various supranational texts and international treaties provide for a more advanced solution under which the foreign enforcement order is declared enforceable ex parte. The most progressive solution is automatic enforceability. Moreover, depending on the applicable regime, the remedies and the requirements governing their admissibility differ. Two recent decisions of the German Federal Supreme Court (Bundesgerichtshof) illustrate how complex the situation is. It is advisable to unify the applicable procedural rules at least insofar as the complexity is the consequence of diverging national rules.

R. Schaub: Traffic Accidents with an International Element: The Complex Interaction of European and National Rules in two Cases from the Austrian Supreme Court

Traffic accidents with an international element are common occurrences but still raise a lot of questions as to the applicable law. In Europe, different sets of rules have been created to facilitate the compensation of victims in such cases. The complex interaction of EU and national rules on substantive law as well as private international law can be seen in two cases from the Austrian Supreme Court.

M. Andrae: Again on the term „obligations arising out of matrimonial property regimes“

The article deals with the characterization of claims between spouses living apart, which concern the joint property marital home and its financing through a credit. It involves: (1) compensation between spouses, in case they are jointly and severally liable for their obligations from the contract; (2) reimbursement of expenses for the matrimonial home, in case of the sole use of the matrimonial home by one of the spouses and (3) cases in which one spouse may demand from the other compensation for use of the matrimonial home. The main problem is whether this claim can be subsumed as “obligations arising out of matrimonial property regimes” with the consequence that it would be excluded from the scope of the Rome I and Rome II Regulation. For this the article presents a number of arguments. Finally, a solution will be discussed, insofar as the Brussels Ibis Regulation for the jurisdiction and the Rome I and Rome II Regulations referring to conflict-of-laws rules are not applicable.

L. M. Kahl: Differences in dealing with foreign law in German and Italian jurisprudence

The article compares two cases in which the German Federal Court of Justice (BGH) and the Italian Supreme Court had to decide on the requirements for dealing with foreign law. The BGH only reviews whether the court of lower instance correctly determined the foreign law under Section 293 German Code of Civil Procedure (ZPO), whereas the Corte di Cassazione reviews if the court correctly applied foreign law under Art. 15 Italian law on Private International Law (legge numero 218/1995). In practice, the criteria set out by the BGH provide for a more in-depth review of judgments on foreign law than the criteria of the Corte di Cassazione. The BGH’s approach on review of judgments on foreign law promotes international harmony of judgments.

Mr Michael Douglas and Prof Vivienne Bath, of Sydney Law School, have published an article on recent amendments to the Uniform Civil Procedure Rules regarding service outside the Australian state of New South Wales. Under the Rules, effective service of the court’s originating process on a defendant outside New South Wales will establish the court’s personal jurisdiction over the defendant. The article clearly sets out and analyses changes to the bases on which a defendant can be served outside Australia under the Rules. Numerous bases have been significantly expanded. It also considers the effect of a new rule allowing for a defendant to be served outside Australia, with the court’s leave, where the claim does not fall within one of those bases. Among the particularly helpful aspects of the article are several comparative tables displaying the original rule, the revision and the authors’ projected impact of the revision.

The authors’ abstract is as follows:

‘In December 2016, the Uniform Civil Procedure Rules 2005 (NSW) were amended in respect of service outside of the jurisdiction and outside Australia. Previously, service outside Australia was authorised if the claim had a specified connection to the forum. The claim was required to fall within one or more of the heads of Schedule 6. If the defendant failed to appear, the plaintiff would require leave to proceed. That position remains the default under the amended Rules, although the heads of Schedule 6 have been revised. However, there has also been a significant change. Under the new Rules, if the claim does not fall within Schedule 6, service may be authorised with the prior leave of the court. This article outlines and comments on the changes to the Rules, identifying areas which may require judicial clarification.’

The paper is available on SSRN at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3025146

Its suggested citation is: Michael Douglas and Vivienne Bath, ‘A New Approach to Service Outside the Jurisdiction and Outside Australia under the Uniform Civil Procedure Rules’ (2017) 44(2) Australian Bar Review 160.